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500 | 7 . 6 Maintenance of Collateral Accounts . | <response> 7 . 6 Maintenance of Collateral Accounts . </response> |
501 | Maintain any Collateral Account except pursuant to the terms of Section 6 . 6 ( b ) hereof . | <response> Maintain any Collateral Account except pursuant to the terms of Section 6 . 6 ( b ) hereof . </response> |
502 | 7 . 7 Distributions ; Investments . | <response> 7 . 7 Distributions ; Investments . </response> |
503 | ( a ) Directly or indirectly make any Investment other than Permitted Investments , or permit any of its Subsidiaries to do so ; or ( b ) pay any dividends or make any distribution or payment or redeem , retire or purchase any capital stock , provided that ( i ) Borrower may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof and make payments in cash for any fractional share upon such conversion or in connection with the exercise or conversion of warrants or other securities in an amount not to exceed $ 25 , 000 in the aggregate , ( ii ) Borrower may pay dividends solely in common stock ; and ( iii ) Borrower may repurchase the stock of former employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase , provided such repurchase does not exceed in the aggregate of $ 100 , 000 per fiscal year . | <response> ( a ) Directly or indirectly make any Investment other than Permitted Investments , or permit any of its Subsidiaries to do so ; or ( b ) pay any dividends or make any distribution or payment or redeem , retire or purchase any capital stock , provided that ( i ) <person>Borrower</person> may convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof and make payments in cash for any fractional share upon such conversion or in connection with the exercise or conversion of warrants or other securities in an amount not to exceed $ 25 , 000 in the aggregate , ( ii ) <person>Borrower</person> may pay dividends solely in common stock ; and ( iii ) <person>Borrower</person> may repurchase the stock of former employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of such repurchase and would not exist after giving effect to such repurchase , provided such repurchase does not exceed in the aggregate of $ 100 , 000 per fiscal year . </response> |
504 | 7 . 8 Transactions with Affiliates . | <response> 7 . 8 Transactions with Affiliates . </response> |
505 | Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower , except for transactions that are in the ordinary course of Borrower ' s business , upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arm ' s length transaction with a non - affiliated Person . | <response> Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of <person>Borrower</person> , except for transactions that are in the ordinary course of <person>Borrower</person> ' s business , upon fair and reasonable terms that are no less favorable to <person>Borrower</person> than would be obtained in an arm ' s length transaction with a non - affiliated Person . </response> |
506 | 7 . 9 Subordinated Debt . | <response> 7 . 9 Subordinated Debt . </response> |
507 | ( a ) Make or permit any payment on any Subordinated Debt , except under the terms of the subordination , intercreditor , or other similar agreement to which such Subordinated Debt is subject , or ( b ) amend any provision in any document relating to the Subordinated Debt which would increase the amount thereof or adversely affect the subordination thereof to Obligations owed to Agent and / or Lenders . | <response> ( a ) Make or permit any payment on any Subordinated Debt , except under the terms of the subordination , intercreditor , or other similar agreement to which such Subordinated Debt is subject , or ( b ) amend any provision in any document relating to the Subordinated Debt which would increase the amount thereof or adversely affect the subordination thereof to Obligations owed to Agent and / or Lenders . </response> |
508 | 7 . 10 Compliance . | <response> 7 . 10 Compliance . </response> |
509 | Become an " investment company " or a company controlled by an " investment company ", under the Investment Company Act of 1940 or undertake as one of its important activities extending credit to purchase or carry margin stock ( as defined in Regulation U of the Board of Governors of the Federal Reserve System ), or use the proceeds of any Credit Extension for that purpose ; fail to meet the minimum funding requirements of ERISA , permit a Reportable Event or Prohibited Transaction , as defined in ERISA , to occur ; fail to comply with the Federal Fair Labor Standards Act or violate any other law or regulation , if the violation could reasonably be expected to have a material adverse effect on Borrower ' s business , or permit any of its Subsidiaries to do so ; withdraw or permit any Subsidiary to withdraw from participation in , permit partial or complete termination of , or permit the occurrence of any other event with respect to , any present pension , profit sharing and deferred compensation plan which could reasonably be expected to result in any liability of Borrower , including any liability to the Pension Benefit Guaranty Corporation or its successors or any other governmental agency . | <response> Become an " investment company " or a company controlled by an " investment company ", under the Investment Company Act of 1940 or undertake as one of its important activities extending credit to purchase or carry margin stock ( as defined in Regulation U of the <organization>Board of Governors of the Federal Reserve System</organization> ), or use the proceeds of any Credit Extension for that purpose ; fail to meet the minimum funding requirements of <organization>ERISA</organization> , permit a Reportable Event or Prohibited Transaction , as defined in <organization>ERISA</organization> , to occur ; fail to comply with the Federal Fair Labor Standards Act or violate any other law or regulation , if the violation could reasonably be expected to have a material adverse effect on <person>Borrower</person> ' s business , or permit any of its Subsidiaries to do so ; withdraw or permit any Subsidiary to withdraw from participation in , permit partial or complete termination of , or permit the occurrence of any other event with respect to , any present pension , profit sharing and deferred compensation plan which could reasonably be expected to result in any liability of <person>Borrower</person> , including any liability to the <organization>Pension Benefit Guaranty Corporation</organization> or its successors or any other governmental agency . </response> |
510 | 8 EVENTS OF DEFAULT Any one of the following shall constitute an event of default ( an " Event of Default ") under this Agreement : 8 . 1 Payment Default . | <response> 8 EVENTS OF DEFAULT Any one of the following shall constitute an event of default ( an " Event of Default ") under this Agreement : 8 . 1 Payment Default . </response> |
511 | Borrower fails to make any payment of principal or interest on any Credit Extension or pay any other Obligations within three ( 3 ) Business Days after such Obligations are due and payable ( which three ( 3 ) Business Day grace period will not apply to payments due on the Maturity Date ). | <response> <person>Borrower</person> fails to make any payment of principal or interest on any Credit Extension or pay any other Obligations within three ( 3 ) Business Days after such Obligations are due and payable ( which three ( 3 ) Business Day grace period will not apply to payments due on the Maturity Date ). </response> |
512 | During the cure period , the failure to cure the payment default is not an Event of Default ( but no Credit Extension will be made during the cure period ); 8 . 2 Covenant Default . | <response> During the cure period , the failure to cure the payment default is not an Event of Default ( but no Credit Extension will be made during the cure period ); 8 . 2 Covenant Default . </response> |
513 | ( a ) Borrower fails or neglects to perform any obligation in Sections 6 . 2 , 6 . 6 , or violates any covenant in Section 7 ; or | <response> ( a ) <person>Borrower</person> fails or neglects to perform any obligation in Sections 6 . 2 , 6 . 6 , or violates any covenant in Section 7 ; or </response> |
514 | - 9 - ( b ) Borrower fails or neglects to perform , keep , or observe any other term , provision , condition , covenant or agreement contained in this Agreement , any Loan Documents , and as to any default ( other than those specified in this Section 8 ) under such other term , provision , condition , covenant or agreement that can be cured , has failed to cure the default within ten ( 10 ) days after the occurrence thereof ; provided , however , that if the default cannot by its nature be cured within the ten ( 10 ) day period or cannot after diligent attempts by Borrower be cured within such ten ( 10 ) day period , and such default is likely to be cured within a reasonable time , then Borrower shall have an additional period ( which shall not without Agent ' s written consent exceed thirty ( 30 ) days ) to attempt to cure such default , and within such reasonable time period the failure to cure the default shall not be deemed an Event of Default ( but no Credit Extensions shall be made during such cure period ). | <response> - 9 - ( b ) <person>Borrower</person> fails or neglects to perform , keep , or observe any other term , provision , condition , covenant or agreement contained in this Agreement , any Loan Documents , and as to any default ( other than those specified in this Section 8 ) under such other term , provision , condition , covenant or agreement that can be cured , has failed to cure the default within ten ( 10 ) days after the occurrence thereof ; provided , however , that if the default cannot by its nature be cured within the ten ( 10 ) day period or cannot after diligent attempts by <person>Borrower</person> be cured within such ten ( 10 ) day period , and such default is likely to be cured within a reasonable time , then <person>Borrower</person> shall have an additional period ( which shall not without Agent ' s written consent exceed thirty ( 30 ) days ) to attempt to cure such default , and within such reasonable time period the failure to cure the default shall not be deemed an Event of Default ( but no Credit Extensions shall be made during such cure period ). </response> |
515 | Grace periods provided under this Section shall not apply to any covenants set forth in subsection ( a ) above ; 8 . 3 Intentionally Deleted ; 8 . 4 Attachment . | <response> Grace periods provided under this Section shall not apply to any covenants set forth in subsection ( a ) above ; 8 . 3 Intentionally Deleted ; 8 . 4 Attachment . </response> |
516 | ( a ) Any material portion of Borrower ' s assets is attached , seized , levied on , or comes into possession of a trustee or receiver and the attachment , seizure or levy is not removed in ten ( 10 ) days ; ( b ) the service of process seeking to attach , by trustee or similar process , any funds of Borrower , or of any entity under control of Borrower ( including a Subsidiary ), on deposit with Agent or Agent ' s Affiliate ; ( c ) Borrower is enjoined , restrained , or prevented by court order from conducting a material part of its business ; ( d ) a judgment or other claim in excess of Two Hundred Fifty Thousand Dollars ($ 250 , 000 . 00 ) becomes a Lien on any of Borrower ' s assets ; or ( e ) a notice of lien , levy , or assessment is filed against any of Borrower ' s assets by any government agency and not paid within ten ( 10 ) days after Borrower receives notice . | <response> ( a ) Any material portion of <person>Borrower</person> ' s assets is attached , seized , levied on , or comes into possession of a trustee or receiver and the attachment , seizure or levy is not removed in ten ( 10 ) days ; ( b ) the service of process seeking to attach , by trustee or similar process , any funds of <person>Borrower</person> , or of any entity under control of <person>Borrower</person> ( including a Subsidiary ), on deposit with Agent or Agent ' s Affiliate ; ( c ) <person>Borrower</person> is enjoined , restrained , or prevented by court order from conducting a material part of its business ; ( d ) a judgment or other claim in excess of Two Hundred Fifty Thousand Dollars ($ 250 , 000 . 00 ) becomes a Lien on any of <person>Borrower</person> ' s assets ; or ( e ) a notice of lien , levy , or assessment is filed against any of <person>Borrower</person> ' s assets by any government agency and not paid within ten ( 10 ) days after <person>Borrower</person> receives notice . </response> |
517 | These are not Events of Default if stayed or if a bond is posted pending contest by Borrower ( but no Credit Extensions shall be made during the cure period ); 8 . 5 Insolvency ( a ) Borrower is unable to pay its debts ( including trade debts ) as they become due or ( b ) the fair salable value of Borrower ' s assets ( including goodwill minus disposition costs ) exceeds the fair value of its liabilities ; ( c ) Borrower begins an Insolvency Proceeding ; or ( d ) an Insolvency Proceeding is begun against Borrower and not dismissed or stayed within thirty ( 30 ) days ( but no Credit Extensions shall be made while of any of the conditions described in clause ( a ) exist and / or until any Insolvency Proceeding is dismissed ); 8 . 6 Other Agreements . | <response> These are not Events of Default if stayed or if a bond is posted pending contest by <person>Borrower</person> ( but no Credit Extensions shall be made during the cure period ); 8 . 5 Insolvency ( a ) <person>Borrower</person> is unable to pay its debts ( including trade debts ) as they become due or ( b ) the fair salable value of <person>Borrower</person> ' s assets ( including goodwill minus disposition costs ) exceeds the fair value of its liabilities ; ( c ) <person>Borrower</person> begins an Insolvency Proceeding ; or ( d ) an Insolvency Proceeding is begun against <person>Borrower</person> and not dismissed or stayed within thirty ( 30 ) days ( but no Credit Extensions shall be made while of any of the conditions described in clause ( a ) exist and / or until any Insolvency Proceeding is dismissed ); 8 . 6 Other Agreements . </response> |
518 | There is a default in any agreement to which Borrower or any Guarantor is a party with a third party or parties resulting in a right by such third party or parties , whether or not exercised , to accelerate the maturity of any Indebtedness in an amount in excess of Two Hundred Fifty Thousand Dollars ($ 250 , 000 . 00 ); 8 . 7 Judgments . | <response> There is a default in any agreement to which <person>Borrower</person> or any Guarantor is a party with a third party or parties resulting in a right by such third party or parties , whether or not exercised , to accelerate the maturity of any Indebtedness in an amount in excess of Two Hundred Fifty Thousand Dollars ($ 250 , 000 . 00 ); 8 . 7 Judgments . </response> |
519 | A judgment or judgments for the payment of money in an amount , individually or in the aggregate , of at least Two Hundred Fifty Thousand Dollars ($ 250 , 000 . 00 ) ( not covered by independent third - party insurance ) shall be rendered against Borrower and shall remain unsatisfied or unstayed for a period of thirty ( 30 ) days after the entry thereof ( provided that no Credit Extensions will be made prior to the satisfaction or stay of such judgment ); 8 . 8 Misrepresentations . | <response> A judgment or judgments for the payment of money in an amount , individually or in the aggregate , of at least Two Hundred Fifty Thousand Dollars ($ 250 , 000 . 00 ) ( not covered by independent third - party insurance ) shall be rendered against <person>Borrower</person> and shall remain unsatisfied or unstayed for a period of thirty ( 30 ) days after the entry thereof ( provided that no Credit Extensions will be made prior to the satisfaction or stay of such judgment ); 8 . 8 Misrepresentations . </response> |
520 | Borrower or any Person acting for Borrower makes any representation , warranty , or other statement now or later in this Agreement , any Loan Document or in any writing delivered to Agent and / or Lenders or to induce Agent and / or Lenders to enter this Agreement or any Loan Document , and such representation , warranty , or other statement is incorrect in any material respect when made ; or 8 . 9 Subordinated Debt . | <response> <person>Borrower</person> or any Person acting for <person>Borrower</person> makes any representation , warranty , or other statement now or later in this Agreement , any Loan Document or in any writing delivered to Agent and / or Lenders or to induce Agent and / or Lenders to enter this Agreement or any Loan Document , and such representation , warranty , or other statement is incorrect in any material respect when made ; or 8 . 9 Subordinated Debt . </response> |
521 | A default or breach occurs under any agreement between Borrower and any creditor of Borrower that signed a subordination , intercreditor , or other similar agreement with Agent and / or Lenders , or any creditor that has signed such an agreement with Agent and / or Lenders breaches any terms of such agreement . | <response> A default or breach occurs under any agreement between <person>Borrower</person> and any creditor of <person>Borrower</person> that signed a subordination , intercreditor , or other similar agreement with Agent and / or Lenders , or any creditor that has signed such an agreement with Agent and / or Lenders breaches any terms of such agreement . </response> |
522 | 9 RIGHTS AND REMEDIES 9 . 1 Rights and Remedies . | <response> 9 RIGHTS AND REMEDIES 9 . 1 Rights and Remedies . </response> |
523 | While an Event of Default occurs and continues Agent may , without notice or demand , do any or all of the following : ( a ) declare all Obligations immediately due and payable ( but if an Event of Default described in Section 8 . 5 occurs all Obligations are immediately due and payable without any action by Agent and / or Lenders ); ( b ) stop advancing money or extending credit for Borrower ' s benefit under this Agreement or under any other agreement between Borrower and Agent and / or Lenders ; | <response> While an Event of Default occurs and continues Agent may , without notice or demand , do any or all of the following : ( a ) declare all Obligations immediately due and payable ( but if an Event of Default described in Section 8 . 5 occurs all Obligations are immediately due and payable without any action by Agent and / or Lenders ); ( b ) stop advancing money or extending credit for <person>Borrower</person> ' s benefit under this Agreement or under any other agreement between <person>Borrower</person> and Agent and / or Lenders ; </response> |
524 | - 10 - ( c ) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Agent considers advisable , notify any Person owing Borrower money of Agent ' s and Lenders ' security interest in such funds , and verify the amount of such account ; ( d ) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and / or its security interest in the Collateral . | <response> - 10 - ( c ) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Agent considers advisable , notify any Person owing <person>Borrower</person> money of Agent ' s and Lenders ' security interest in such funds , and verify the amount of such account ; ( d ) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and / or its security interest in the Collateral . </response> |
525 | Borrower shall assemble the Collateral if Agent requests and make it available as Agent designates . | <response> <person>Borrower</person> shall assemble the Collateral if Agent requests and make it available as Agent designates . </response> |
526 | Agent may enter premises where the Collateral is located , take and maintain possession of any part of the Collateral , and pay , purchase , contest , or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred . | <response> Agent may enter premises where the Collateral is located , take and maintain possession of any part of the Collateral , and pay , purchase , contest , or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred . </response> |
527 | Borrower grants Agent for the benefit of Lenders a license to enter and occupy any of its premises , without charge , to exercise any of Agent ' s rights or remedies ; ( e ) apply to the Obligations then due and payable any ( i ) balances and deposits of Borrower it holds , or ( ii ) any amount held by Agent or Lenders owing to or for the credit or the account of Borrower ; ( f ) ship , reclaim , recover , store , finish , maintain , repair , prepare for sale , advertise for sale , and sell the Collateral . | <response> <person>Borrower</person> grants Agent for the benefit of Lenders a license to enter and occupy any of its premises , without charge , to exercise any of Agent ' s rights or remedies ; ( e ) apply to the Obligations then due and payable any ( i ) balances and deposits of <person>Borrower</person> it holds , or ( ii ) any amount held by Agent or Lenders owing to or for the credit or the account of <person>Borrower</person> ; ( f ) ship , reclaim , recover , store , finish , maintain , repair , prepare for sale , advertise for sale , and sell the Collateral . </response> |
528 | Agent is hereby granted a non - exclusive , royalty - free license or other right to use , without charge , Borrower ' s labels , patents , copyrights , mask works , rights of use of any name , trade secrets , trade names , trademarks , service marks , and advertising matter , or any similar property as it pertains to the Collateral , in completing production of , advertising for sale , and selling any Collateral and , in connection with Agent ' s exercise of its rights under this Section , Borrower ' s rights under all licenses and all franchise agreements inure to Agent for the benefit of Lenders ; ( g ) place a " hold " on any account maintained with Agent or Lenders and / or deliver a notice of exclusive control , any entitlement order , or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral ; ( h ) demand and receive possession of Borrower ' s Books ; and ( i ) exercise all rights and remedies available to Agent and / or Lenders under the Loan Documents or at law or equity , including all remedies provided under the Code ( including disposal of the Collateral pursuant to the terms thereof ). | <response> Agent is hereby granted a non - exclusive , royalty - free license or other right to use , without charge , <person>Borrower</person> ' s labels , patents , copyrights , mask works , rights of use of any name , trade secrets , trade names , trademarks , service marks , and advertising matter , or any similar property as it pertains to the Collateral , in completing production of , advertising for sale , and selling any Collateral and , in connection with Agent ' s exercise of its rights under this Section , <person>Borrower</person> ' s rights under all licenses and all franchise agreements inure to Agent for the benefit of Lenders ; ( g ) place a " hold " on any account maintained with Agent or Lenders and / or deliver a notice of exclusive control , any entitlement order , or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral ; ( h ) demand and receive possession of <person>Borrower</person> ' s Books ; and ( i ) exercise all rights and remedies available to Agent and / or Lenders under the Loan Documents or at law or equity , including all remedies provided under the Code ( including disposal of the Collateral pursuant to the terms thereof ). </response> |
529 | 9 . 2 Power of Attorney . | <response> 9 . 2 Power of Attorney . </response> |
530 | Borrower hereby irrevocably appoints Agent as its lawful attorney - in - fact , exercisable upon the occurrence and during the continuance of an Event of Default , to : ( a ) endorse Borrower ' s name on any checks or other forms of payment or security ; ( b ) sign Borrower ' s name on any invoice or bill of lading for any Account or drafts against Account Debtors ; ( c ) settle and adjust disputes and claims about the Accounts directly with Account Debtors , for amounts and on terms Agent determines reasonable ; ( d ) make , settle , and adjust all claims under Borrower ' s insurance policies ; ( e ) pay , contest or settle any Lien , charge , encumbrance , security interest , and adverse claim in or to the Collateral , or any judgment based thereon , or otherwise take any action to terminate or discharge the same ; and ( f ) transfer the Collateral into the name of Agent for the benefit of Lenders or a third party as the Code permits . | <response> <person>Borrower</person> hereby irrevocably appoints Agent as its lawful attorney - in - fact , exercisable upon the occurrence and during the continuance of an Event of Default , to : ( a ) endorse <person>Borrower</person> ' s name on any checks or other forms of payment or security ; ( b ) sign <person>Borrower</person> ' s name on any invoice or bill of lading for any Account or drafts against Account Debtors ; ( c ) settle and adjust disputes and claims about the Accounts directly with Account Debtors , for amounts and on terms Agent determines reasonable ; ( d ) make , settle , and adjust all claims under <person>Borrower</person> ' s insurance policies ; ( e ) pay , contest or settle any Lien , charge , encumbrance , security interest , and adverse claim in or to the Collateral , or any judgment based thereon , or otherwise take any action to terminate or discharge the same ; and ( f ) transfer the Collateral into the name of Agent for the benefit of Lenders or a third party as the Code permits . </response> |
531 | Borrower hereby appoints Agent as its lawful attorney - in - fact to sign Borrower ' s name on any documents necessary to perfect or continue the perfection of Agent ' s and Lenders ' security interest in the Collateral regardless of whether an Event of Default has occurred until all Obligations have been satisfied in full and Agent and Lenders are under no further obligation to make Credit Extensions hereunder . | <response> <person>Borrower</person> hereby appoints Agent as its lawful attorney - in - fact to sign <person>Borrower</person> ' s name on any documents necessary to perfect or continue the perfection of Agent ' s and Lenders ' security interest in the Collateral regardless of whether an Event of Default has occurred until all Obligations have been satisfied in full and Agent and Lenders are under no further obligation to make Credit Extensions hereunder . </response> |
532 | Agent ' s foregoing appointment as Borrower ' s attorney in fact , and all of Agent ' s rights and powers , coupled with an interest , are irrevocable until all Obligations have been fully repaid and performed and Agent ' s and Lenders ' obligation to provide Credit Extensions terminates . | <response> Agent ' s foregoing appointment as <person>Borrower</person> ' s attorney in fact , and all of Agent ' s rights and powers , coupled with an interest , are irrevocable until all Obligations have been fully repaid and performed and Agent ' s and Lenders ' obligation to provide Credit Extensions terminates . </response> |
533 | 9 . 3 Accounts Verification ; Collection . | <response> 9 . 3 Accounts Verification ; Collection . </response> |
534 | During the existence of an Event of Default has occurred and is continuing , Agent may notify any Person owing Borrower money of Agent ' s and Lenders ' security interest in such funds and verify the amount of such account . | <response> During the existence of an Event of Default has occurred and is continuing , Agent may notify any Person owing <person>Borrower</person> money of Agent ' s and Lenders ' security interest in such funds and verify the amount of such account . </response> |
535 | After the occurrence and during the continuance of an Event of Default , any amounts received by Borrower shall be held in trust by Borrower for Agent and Lenders , and , if requested by Agent , Borrower shall immediately deliver such receipts to Agent for the benefit of Lenders in the form received from the Account Debtor , with proper endorsements for deposit . | <response> After the occurrence and during the continuance of an Event of Default , any amounts received by <person>Borrower</person> shall be held in trust by <person>Borrower</person> for Agent and Lenders , and , if requested by Agent , <person>Borrower</person> shall immediately deliver such receipts to Agent for the benefit of Lenders in the form received from the Account Debtor , with proper endorsements for deposit . </response> |
536 | 9 . 4 Protective Payments . | <response> 9 . 4 Protective Payments . </response> |
537 | If Borrower fails to obtain the insurance called for by Section 6 . 5 or fails to pay any premium thereon or fails to pay any other amount which Borrower is obligated to pay under this Agreement or any other Loan Document , Agent may obtain such insurance or make such payment , and all amounts so paid by Agent are Lenders ' Expenses and immediately due and payable , bearing interest at the then highest | <response> If <person>Borrower</person> fails to obtain the insurance called for by Section 6 . 5 or fails to pay any premium thereon or fails to pay any other amount which <person>Borrower</person> is obligated to pay under this Agreement or any other Loan Document , Agent may obtain such insurance or make such payment , and all amounts so paid by Agent are Lenders ' Expenses and immediately due and payable , bearing interest at the then highest </response> |
538 | - 11 - applicable rate charged by Agent , and secured by the Collateral . | <response> - 11 - applicable rate charged by Agent , and secured by the Collateral . </response> |
539 | Agent will make reasonable efforts to provide Borrower with notice of Agent obtaining such insurance at the time it is obtained or within a reasonable time thereafter . | <response> Agent will make reasonable efforts to provide <person>Borrower</person> with notice of Agent obtaining such insurance at the time it is obtained or within a reasonable time thereafter . </response> |
540 | No payments by Agent are deemed an agreement to make similar payments in the future or Agent ' s or any Lender ' s waiver of any Event of Default . | <response> No payments by Agent are deemed an agreement to make similar payments in the future or Agent ' s or any <person>Lender</person> ' s waiver of any Event of Default . </response> |
541 | 9 . 5 Application of Payments and Proceeds . | <response> 9 . 5 Application of Payments and Proceeds . </response> |
542 | If an Event of Default has occurred and is continuing , Agent and Lenders may apply any funds in their possession , whether from Borrower account balances , payments , proceeds realized as the result of any collection of Accounts or other disposition of the Collateral , or otherwise , to the Obligations in such order as Agent shall determine in its sole discretion . | <response> If an Event of Default has occurred and is continuing , Agent and Lenders may apply any funds in their possession , whether from <person>Borrower</person> account balances , payments , proceeds realized as the result of any collection of Accounts or other disposition of the Collateral , or otherwise , to the Obligations in such order as Agent shall determine in its sole discretion . </response> |
543 | Any surplus shall be paid to Borrower or other Persons legally entitled thereto ; Borrower shall remain liable to Agent and Lenders for any deficiency . | <response> Any surplus shall be paid to <person>Borrower</person> or other Persons legally entitled thereto ; <person>Borrower</person> shall remain liable to Agent and Lenders for any deficiency . </response> |
544 | If Agent and / or Lenders , in their good faith business judgment , directly or indirectly enter into a deferred payment or other credit transaction with any purchaser at any sale of Collateral , Agent and each Lender shall have the option , exercisable at any time , of either reducing the Obligations by the principal amount of the purchase price or deferring the reduction of the Obligations until the actual receipt by Agent of cash therefor . | <response> If Agent and / or Lenders , in their good faith business judgment , directly or indirectly enter into a deferred payment or other credit transaction with any purchaser at any sale of Collateral , Agent and each <person>Lender</person> shall have the option , exercisable at any time , of either reducing the Obligations by the principal amount of the purchase price or deferring the reduction of the Obligations until the actual receipt by Agent of cash therefor . </response> |
545 | 9 . 6 Agent ' s and Lenders ' Liability for Collateral . | <response> 9 . 6 Agent ' s and Lenders ' Liability for Collateral . </response> |
546 | So long as Agent and Lenders comply with reasonable banking practices and the Code regarding the safekeeping of the Collateral in the possession or under the control of Agent and Lenders , Agent and Lenders shall not be liable or responsible for : ( a ) the safekeeping of the Collateral ; ( b ) any loss or damage to the Collateral ; ( c ) any diminution in the value of the Collateral ; or ( d ) any act or default of any carrier , warehouseman , bailee , or other Person . | <response> So long as Agent and Lenders comply with reasonable banking practices and the Code regarding the safekeeping of the Collateral in the possession or under the control of Agent and Lenders , Agent and Lenders shall not be liable or responsible for : ( a ) the safekeeping of the Collateral ; ( b ) any loss or damage to the Collateral ; ( c ) any diminution in the value of the Collateral ; or ( d ) any act or default of any carrier , warehouseman , bailee , or other Person . </response> |
547 | Borrower bears all risk of loss , damage or destruction of the Collateral . | <response> <person>Borrower</person> bears all risk of loss , damage or destruction of the Collateral . </response> |
548 | 9 . 7 No Waiver ; Remedies Cumulative . | <response> 9 . 7 No Waiver ; Remedies Cumulative . </response> |
549 | Agent ' s and / or any Lender ' s failure , at any time or times , to require strict performance by Borrower of any provision of this Agreement or any other Loan Document shall not waive , affect , or diminish any right of Agent and / or Lenders thereafter to demand strict performance and compliance herewith or therewith . | <response> Agent ' s and / or any <person>Lender</person> ' s failure , at any time or times , to require strict performance by <person>Borrower</person> of any provision of this Agreement or any other Loan Document shall not waive , affect , or diminish any right of Agent and / or Lenders thereafter to demand strict performance and compliance herewith or therewith . </response> |
550 | No waiver hereunder shall be effective unless signed by Agent and each Lender and then is only effective for the specific instance and purpose for which it is given . | <response> No waiver hereunder shall be effective unless signed by Agent and each <person>Lender</person> and then is only effective for the specific instance and purpose for which it is given . </response> |
551 | Agent ' s and Lenders ' rights and remedies under this Agreement and the other Loan Documents are cumulative . | <response> Agent ' s and Lenders ' rights and remedies under this Agreement and the other Loan Documents are cumulative . </response> |
552 | Agent and Lenders have all rights and remedies provided under the Code , by law , or in equity . | <response> Agent and Lenders have all rights and remedies provided under the Code , by law , or in equity . </response> |
553 | Agent ' s exercise of one right or remedy is not an election , and Agent ' s waiver of any Event of Default is not a continuing waiver . | <response> Agent ' s exercise of one right or remedy is not an election , and Agent ' s waiver of any Event of Default is not a continuing waiver . </response> |
554 | Agent ' s delay in exercising any remedy is not a waiver , election , or acquiescence . | <response> Agent ' s delay in exercising any remedy is not a waiver , election , or acquiescence . </response> |
555 | 9 . 8 Demand Waiver . | <response> 9 . 8 Demand Waiver . </response> |
556 | Borrower waives demand , notice of default or dishonor , notice of payment and nonpayment , notice of any default , nonpayment at maturity , release , compromise , settlement , extension , or renewal of accounts , documents , instruments , chattel paper , and guarantees held by Agent on which Borrower is liable . | <response> <person>Borrower</person> waives demand , notice of default or dishonor , notice of payment and nonpayment , notice of any default , nonpayment at maturity , release , compromise , settlement , extension , or renewal of accounts , documents , instruments , chattel paper , and guarantees held by Agent on which <person>Borrower</person> is liable . </response> |
557 | 10 NOTICES All notices , consents , requests , approvals , demands , or other communication ( collectively , " Communication ") by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served , given , or delivered : ( a ) upon the earlier of actual receipt and three ( 3 ) Business Days after deposit in the U . S . mail , first class , registered or certified mail return receipt requested , with proper postage prepaid ; ( b ) upon transmission , when sent by electronic mail or facsimile transmission ; ( c ) one ( 1 ) Business Day after deposit with a reputable overnight courier with all charges prepaid ; or ( d ) when delivered , if hand - delivered by messenger , all of which shall be addressed to the party to be notified and sent to the address , facsimile number , or email address indicated below . | <response> 10 NOTICES All notices , consents , requests , approvals , demands , or other communication ( collectively , " Communication ") by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served , given , or delivered : ( a ) upon the earlier of actual receipt and three ( 3 ) Business Days after deposit in the U . S . mail , first class , registered or certified mail return receipt requested , with proper postage prepaid ; ( b ) upon transmission , when sent by electronic mail or facsimile transmission ; ( c ) one ( 1 ) Business Day after deposit with a reputable overnight courier with all charges prepaid ; or ( d ) when delivered , if hand - delivered by messenger , all of which shall be addressed to the party to be notified and sent to the address , facsimile number , or email address indicated below . </response> |
558 | Either Lender , Agent , or Borrower may change its address or facsimile number by giving the other party written notice thereof in accordance with the terms of this Section 10 . | <response> Either <person>Lender</person> , Agent , or <person>Borrower</person> may change its address or facsimile number by giving the other party written notice thereof in accordance with the terms of this Section 10 . </response> |
559 | If to Borrower : | <response> If to <person>Borrower</person> : </response> |
560 | Vringo , Inc . | <response> <organization>Vringo</organization> , Inc . </response> |
561 | BIG Center , Bet Shemesh | <response> <organization>BIG Center</organization> , <location>Bet Shemesh</location> </response> |
562 | 1 Yigal Allon Blvd | <response> <location>1 Yigal Allon Blvd</location> </response> |
563 | Bet Shemesh 00062 Israel | <response> <location>Bet Shemesh 00062 Israel</location> </response> |
564 | Attn : David Corre | <response> Attn : <person>David Corre</person> </response> |
565 | Fax : + 972 2 991 3382 | <response> Fax : + 972 2 991 3382 </response> |
566 | Email : david . corre @ vringo . com | <response> Email : <person>david</person> . <person>corre</person> @ <organization>vringo</organization> . com </response> |
567 | - 12 - If to Agent or SVB : | <response> - 12 - If to Agent or SVB : </response> |
568 | Silicon Valley Bank | <response> <organization>Silicon Valley Bank</organization> </response> |
569 | 535 Fifth Avenue , 27th Floor , | <response> <location>535 Fifth Avenue</location> , <location>27th Floor</location> , </response> |
570 | New York , New York 10017 | <response> <location>New York</location> , <location>New York 10017</location> </response> |
571 | Attn : Mr . Michael Moretti | <response> Attn : Mr . <person>Michael Moretti</person> </response> |
572 | Fax : ( 212 ) 688 - 5994 | <response> Fax : ( 212 ) 688 - 5994 </response> |
573 | Email : MMoretti @ svb . com | <response> Email : <person>MMoretti</person> @ <organization>svb</organization> . com </response> |
574 | with a copy to : | <response> with a copy to : </response> |
575 | Riemer & Braunstein LLP | <response> <organization>Riemer</organization> & <organization>Braunstein LLP</organization> </response> |
576 | Three Center Plaza Boston , Massachusetts 02108 | <response> <location>Three Center Plaza Boston</location> , <location>Massachusetts 02108</location> </response> |
577 | Attn : David A . Ephraim , Esquire | <response> Attn : <person>David A</person> . <person>Ephraim</person> , <location>Esquire</location> </response> |
578 | Fax : ( 617 ) 880 - 3456 | <response> Fax : ( 617 ) 880 - 3456 </response> |
579 | Email : DEphraim @ riemerlaw . com | <response> Email : <person>DEphraim</person> @ <organization>riemerlaw</organization> . com </response> |
580 | If to Gold Hill : | <response> If to <location>Gold Hill</location> : </response> |
581 | Gold Hill Venture Lending 03 , L . P . | <response> <location>Gold Hill Venture Lending 03</location> , L . P . </response> |
582 | Two Newton Executive Park , Suite 203 | <response> Two <location>Newton Executive Park</location> , <location>Suite 203</location> </response> |
583 | 2227 Washington Street | <response> <location>2227 Washington Street</location> </response> |
584 | Newton , Massachusetts 02462 | <response> <location>Newton</location> , <location>Massachusetts 02462</location> </response> |
585 | Attn : Mr . David Fischer | <response> Attn : Mr . <person>David Fischer</person> </response> |
586 | Fax : ( 617 ) 243 - 2601 | <response> Fax : ( 617 ) 243 - 2601 </response> |
587 | Email : DFischer @ goldhillcapital . com | <response> Email : <person>DFischer</person> @ <location>goldhillcapital</location> . com </response> |
588 | - 13 - 11 CHOICE OF LAW , VENUE AND JURY TRIAL WAIVER Massachusetts law governs the Loan Documents without regard to principles of conflicts of law . | <response> - 13 - 11 CHOICE OF LAW , VENUE AND JURY TRIAL WAIVER <location>Massachusetts</location> law governs the Loan Documents without regard to principles of conflicts of law . </response> |
589 | Borrower , Lenders and Agent each submit to the exclusive jurisdiction of the State and Federal courts in Massachusetts ; provided , however , that if for any reason Agent and / or Lenders cannot avail themselves of such courts in the Commonwealth of Massachusetts , Borrower accepts jurisdiction of the courts and venue in Santa Clara County , California . | <response> <person>Borrower</person> , Lenders and Agent each submit to the exclusive jurisdiction of the State and Federal courts in <location>Massachusetts</location> ; provided , however , that if for any reason Agent and / or Lenders cannot avail themselves of such courts in the <location>Commonwealth of Massachusetts</location> , <person>Borrower</person> accepts jurisdiction of the courts and venue in <location>Santa Clara County</location> , <location>California</location> . </response> |
590 | NOTWITHSTANDING THE FOREGOING , AGENT SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH AGENT DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE AGENT ' S OR LENDERS ' RIGHTS AGAINST BORROWER OR ITS PROPERTY . | <response> NOTWITHSTANDING THE FOREGOING , AGENT SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST <person>BORROWER</person> OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH AGENT DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE AGENT ' S OR LENDERS ' RIGHTS AGAINST <person>BORROWER</person> OR ITS PROPERTY . </response> |
591 | TO THE EXTENT PERMITTED BY APPLICABLE LAW , BORROWER , LENDERS AND AGENT EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT , THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION , INCLUDING CONTRACT , TORT , BREACH OF DUTY AND ALL OTHER CLAIMS . | <response> TO THE EXTENT PERMITTED BY APPLICABLE LAW , <person>BORROWER</person> , LENDERS AND AGENT EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT , THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION , INCLUDING CONTRACT , TORT , BREACH OF DUTY AND ALL OTHER CLAIMS . </response> |
592 | THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT . | <response> THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT . </response> |
593 | EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL . | <response> EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL . </response> |
594 | 12 GENERAL PROVISIONS 12 . 1 Successors and Assigns . | <response> 12 GENERAL PROVISIONS 12 . 1 Successors and Assigns . </response> |
595 | This Agreement binds and is for the benefit of the successors and permitted assigns of each party . | <response> This Agreement binds and is for the benefit of the successors and permitted assigns of each party . </response> |
596 | Borrower may not assign this Agreement or any rights or obligations under it without Agent ' s prior written consent ( which may be granted or withheld in Agent ' s discretion ). | <response> <person>Borrower</person> may not assign this Agreement or any rights or obligations under it without Agent ' s prior written consent ( which may be granted or withheld in Agent ' s discretion ). </response> |
597 | Lenders and Agent have the right , without the consent of or notice to Borrower , to sell , transfer , assign , negotiate , or grant participation in all or any part of , or any interest in , Agent ' s and / Lenders ' obligations , rights , and benefits under this Agreement and the other Loan Documents . | <response> Lenders and Agent have the right , without the consent of or notice to <person>Borrower</person> , to sell , transfer , assign , negotiate , or grant participation in all or any part of , or any interest in , Agent ' s and / Lenders ' obligations , rights , and benefits under this Agreement and the other Loan Documents . </response> |
598 | 12 . 2 Indemnification . | <response> 12 . 2 Indemnification . </response> |
599 | Borrower agrees to indemnify , defend and hold Agent and Lenders and their respective directors , officers , employees , agents , attorneys , or any other Person affiliated with or representing Agent or any Lender ( each , an " Indemnified Person ") harmless against : ( a ) all obligations , demands , claims , and liabilities ( collectively , " Claims ") asserted by any other party in connection with the transactions contemplated by the Loan Documents ; and ( b ) all losses or Lenders ' Expenses incurred , or paid by Lenders and / or Agent from , following , or arising from transactions between Lenders and Borrower ( including reasonable attorneys ' fees and expenses ), except for Claims and / or losses directly caused by an Indemnified Person ' s gross negligence or willful misconduct . | <response> <person>Borrower</person> agrees to indemnify , defend and hold Agent and Lenders and their respective directors , officers , employees , agents , attorneys , or any other Person affiliated with or representing Agent or any <person>Lender</person> ( each , an " Indemnified Person ") harmless against : ( a ) all obligations , demands , claims , and liabilities ( collectively , " Claims ") asserted by any other party in connection with the transactions contemplated by the Loan Documents ; and ( b ) all losses or Lenders ' Expenses incurred , or paid by Lenders and / or Agent from , following , or arising from transactions between Lenders and <person>Borrower</person> ( including reasonable attorneys ' fees and expenses ), except for Claims and / or losses directly caused by an Indemnified Person ' s gross negligence or willful misconduct . </response> |
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